U.S. v.

Steele
IN THE CASE OF
UNITED STATES, Appellee
v.
Milton D. STEELE, Lance Corporal
U.S. Marine Corps, Appellant

No. 99-0314
Crim. App. No. 97-1236

United States Court of Appeals for the Armed Forces

Argued April 4, 2000
Decided August 16, 2000

EFFRON, J., delivered the opinion of the Court, in which CRAWFORD, C.J.,
SULLIVAN and GIERKE, JJ., and COX, S.J., joined. COX, S.J., filed a concurring
opinion.

Counsel
For Appellant: George A Gallenthin (argued); Lieutenant Dale O. Harris (on brief).
For Appellee: Captain William J. Collins, Jr. (argued); Commander Eugene E. Irvin,
Colonel Kevin M. Sandkuhler and Captain Michael D. Carsten (on brief).
Military Judges: J. A. Bukauskas and R. E. Nunley

THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE

PUBLICATION.

Judge EFFRON delivered the opinion of the Court.

A general court-martial composed of a military judge sitting alone convicted
appellant, pursuant to mixed pleas, of conspiracy to distribute cocaine and wrongful
distribution of cocaine, in violation of Articles 81 and 112a, Uniform Code of
Military Justice, 10 USC 881 and 912a, respectively. He was sentenced to a
dishonorable discharge, confinement for 8 years, total forfeitures, and reduction to
the lowest enlisted grade. The convening authority approved the sentence, and the
Court of Criminal Appeals affirmed in an unpublished opinion.
On appellants petition, we granted review of the following issue:
WHETHER APPELLANT WAS DENIED HIS SIXTH
AMENDMENT RIGHT TO COUNSEL WHERE HIS CIVILIAN
DEFENSE COUNSEL WAS UNAUTHORIZED TO PRACTICE LAW
IN ALL JURISDICTIONS WHERE HE HAD BEEN ADMITTED TO
PRACTICE LAW.
We also specified the following issue:
WHETHER A CIVILIAN COUNSEL WHO IS IN INACTIVE OR
RETIRED STATUS IN HIS BAR MEMBERSHIP(S) REMAINS
AUTHORIZED TO PRACTICE BEFORE A GENERAL COURTMARTIAL IN TERMS OF UCMJ, ARTICLES 27 AND 38(b)(2) AND
RCM 502.
For the reasons set forth below, we affirm the decision of the Court of Criminal
Appeals.
I. BACKGROUND
Appellant was represented at trial by detailed military counsel, Captain T, and by a
civilian defense counsel, Mr. C. Detailed defense counsel announced that he was
"qualified and certified in accordance with Article 27(b) and sworn in accordance
with Article 42(a) of the Uniform Code of Military Justice." Similarly, civilian
defense counsel announced, "I am licensed to practice law by the highest courts of

the States of Iowa, Hawaii, and Texas; and I am previously qualified and certified
and sworn in accordance with Articles 27(b) and 42(a) of the Uniform Code of
Military Justice." The military judge then advised appellant of his rights to counsel,
and appellant stated that he wished to be represented by Captain T and Mr. C.
Throughout trial and post-trial proceedings, and before the Court of Criminal
Appeals, appellant made no claim challenging the qualifications, bar status, or
effectiveness of either his detailed or civilian counsel. However, in his Supplement
to Petition for Grant of Review filed in this Court, appellant asserted the foregoing
Issue and moved to attach documents relating to Mr. Cs professional status as a
member of the Iowa, Hawaii, and Texas bar associations. We granted appellants
motion to attach those documents on March 2, 2000. Because the facts in those
documents are not contested, we accept them as true for purposes of this appeal.
These documents reveal that Mr. C was a member of the bar in three states, Iowa,
Hawaii, and Texas, as he had stated on the record. He was admitted to the bar of
Iowa in 1982, but his status was later changed to "retired and inactive." According to
a letter from the Board of Professional Ethics and Conduct of the Iowa Supreme
Court, "[a] person who has been admitted to practice law in Iowa and has had their
license to practice law suspended or is on inactive status, cannot practice law under
the authority of the Iowa license outside of Iowa." Mr. C was admitted to bar
membership in Hawaii in 1989, but he later entered inactive status. According to
Hawaii Supreme Court Rule 17(d)(7), an attorney may "desire to assume inactive
status and discontinue the practice of law in Hawaii." The rule notes that an attorney
on inactive status "shall no longer be eligible to practice law." Mr. C became a
member of the bar of the State of Texas in 1992. Shortly thereafter, at his request, he
was placed on inactive status. The result of that action was that civilian counsel was
"not authorized to practice as an attorney and counselor at law in the STATE of
TEXAS."
II. QUALIFICATIONS OF COUNSEL
Article 27, UCMJ, 10 USC 827, entitles an accused before a general or special
court-martial to representation by detailed military defense counsel without regard to
his ability to pay. Under Article 27(b):
(b) Trial counsel or defense counsel detailed for a general courtmartial

(1) must be a judge advocate who is a graduate of an

accredited law school or is a member of the bar of a Federal
court or of the highest court of a State; or must be a member
of the bar of a Federal court or of the highest court of a

State; and
(2) must be certified as competent to perform such duties
by the Judge Advocate General of the armed force of which
he is a member.
Article 27 is silent with respect to the right to be represented by civilian counsel and
with respect to any qualifications imposed upon civilian defense counsel.
Article 38(b), UCMJ, 10 USC 838(b), sets forth the full penumbra of an
accuseds options with respect to representation before general and special courtsmartial: detailed military counsel, individually requested military counsel, or civilian
counsel. Under Article 38(b)(2), "The accused may be represented by civilian
counsel if provided by him." Neither Article 38 nor any other provision of the Code
establishes any qualifications or requisites -- other than the oath -- for a civilian
counsel to practice before a court-martial. See Art. 42, UCMJ, 10 USC 842; see
also Soriano v. Hosken, 9 MJ 221 (CMA 1980), and United States v. Kraskouskas, 9
USCMA 607, 26 CMR 387 (1958).
The President has established basic qualifications for civilian counsel in RCM 502,
Manual for Courts-Martial, United States (1995 ed.). Civilian counsel representing
an accused before a court-martial must be "[a] member of the bar of a Federal court
or of the bar of the highest court of a State." RCM 502(d)(3)(A). If that civilian
lawyer is "not a member of such a bar," then he or she must be "a lawyer who is
authorized by a recognized licensing authority to practice law and is found by the
military judge to be qualified to represent the accused upon a showing to the
satisfaction of the military judge that the counsel has appropriate training and
familiarity with the general principles of criminal law which apply in a courtmartial." RCM 502(d)(3)(B). Neither the Code nor the Manual expressly
disqualifies a civilian attorney on the grounds that his or her bar status is designated
as "inactive."
Federal courts in the civilian sector have dealt with the question of an attorneys
bar status vis-a-vis an accuseds Sixth Amendment right to counsel. In general,
they hold that once an attorney is found competent and admitted to practice law in a
licensing jurisdiction, subsequent changes to his or her bar membership status do not
render that counsel incompetent or disqualified. "Though admission to practice
before a federal court is derivative from membership in a state bar, disbarment by
the State does not result in automatic disbarment by the federal court. Though that
state action is entitled to respect, it is not conclusively binding on the federal courts."
In re Ruffalo, 390 U.S. 544, 547 (1968), citing Theard v. United States, 354 U.S.
278, 281-82 (1957).
In Reese v. Peters, 926 F.2d 668 (1991), Reese contended that representation at trial

by a lawyer who had been suspended for failure to pay his state bar dues was an
automatic violation of the Sixth Amendment. The Seventh Circuit rejected such a
per se rule. The court agreed with Beto v. Barfield, 391 F.2d 275 (5th Cir. 1968),
which held "that a lawyer whose license had been suspended for failure to pay dues
still may" serve as "counsel" within the meaning of the Sixth Amendment. "What
matters for constitutional purposes is that the legal representative was enrolled after
the court concluded that he was fit to render legal assistance." Reese, 926 F.2d at
670.
In Solina v. United States, 709 F.2d 160 (1983), the accused was unaware that his
defense attorney had not passed the bar exam and had not been admitted to practice
as a member of any state bar. While the Second Circuit did find this defect to be fatal
in terms of the Sixth Amendment right to counsel, the court was careful to
distinguish its holding from situations in which competence was not in issue:
[W]e do not intimate that any technical defect in the licensed status of a
defendants representative would amount to a violation of the Sixth
Amendment. We limit our decision in this case to situations where,
unbeknown to the defendant, his representative was not authorized to
practice law in any state, and the lack of such authorization stemmed
from failure to seek it or from its denial for a reason going to legal
ability, such as failure to pass a bar examination, or want of moral
character. . . .
Id. at 167 (footnote omitted).
An argument that disbarment by the Court of Appeals made "counsels continued
services . . . ineffective under the Sixth Amendment" was rejected in United States
v. Mouzin, 785 F.2d 682 (9th Cir.), cert. denied sub nom., Carvajal v. United States,
479 U.S. 985 (1986). The court held that subsequent services by that disbarred
attorney would not be deemed inadequate without considering the "intrinsic quality"
of those services. The court noted that in United States v. Hoffman, 733 F. 2d 596
(9th Cir.), cert. denied, 469 U.S. 1039 (1984), it had rejected any "per se rule" to the
effect "that in the federal court, representation by a lawyer suspended from practice
by a state bar automatically results in the denial of the Sixth Amendment right to
counsel." It noted: "[T]he fact that an attorney is suspended or disbarred does not,
without more, rise to the constitutional significance of ineffective counsel under the
Sixth Amendment. Rather, a defendant must ordinarily point to specific conduct
which prejudiced him in order to raise the constitutional claim" of ineffective
assistance of counsel. Mouzin, 785 F.2d at 696-97; see also United States v. MariaMartinez, 143 F.3d 914, 916-19 (5th Cir. 1998), cert. denied, 525 U.S. 1107 (1999);
and United States v. McKinney, 53 F.3d 664, 675 (5th Cir.), cert. denied sub nom.,

Wade v. United States, 516 U.S. 901 (1995).

Our Court has addressed the significance of a licensing authoritys decision to
admit a person to the bar. In Soriano v. Hosken, supra, we noted that a civilian
counsel must be "qualified" in order to make the right to civilian counsel
"meaningful as intended by the Code." 9 MJ at 221. Civilian counsel must also be
"authorized by some recognized licensing authority to engage in the practice of
law." Kraskouskas, 9 USCMA at 609, 26 CMR at 389. There are no other
restrictions on an accuseds right to counsel under Article 38(b). Once licensed,
"such lawyers are presumed competent for the professional undertaking of the
defense of a military accused at a court-martial." Soriano, 9 MJ at 222.
The decisions of our Court and other federal courts reflect that admission to practice
is the necessary indicia that a level of competence has been achieved and reviewed
by a competent licensing authority. This determination of competence is not
necessarily eviscerated when sanctions are imposed by a state bar or by changes in
counsels status where those matters do not demonstrate a negative determination
of counsels competence. As the Ninth Circuit concluded in Mouzin:
Neither suspension nor disbarment invites a per se rule that continued
representation in an ongoing trial is constitutionally ineffective.
Admission to the bar allows us to assume that counsel has the training,
knowledge, and ability to represent a client who has chosen him.
Continued licensure normally gives a reliable signal to the public that
the licensee is what he purports to be an attorney qualified to advise
and represent a client. But it is an undeniable fact of experience that
lawyers unhappily incur sanctions ranging from censure to disbarment;
that sometimes that discipline flows from revealed incompetence or
untrustworthiness or turpitude such as to deserve no clients
confidence. All we need hold here is that a lawyers services were
ineffective on a case, not a per se, basis.
785 F.2d at 698; see United States v. Mitchell, No. 99-3035, __ F.3d __, __ (D.C.
Cir. June 30, 2000).
III. DISCUSSION
In light of the foregoing considerations, we hold that Mr. C was not disqualified by
virtue of his status as an "inactive" member of the bars of Iowa, Hawaii, and Texas.
Contrary to appellants assertions in his brief, there is no evidence that Mr. C was
suspended from practicing in any of the states in which he held bar membership.
Rather, Mr. C merely assumed an inactive status in each of those jurisdictions. This
status does not reflect adversely upon his competence; nor does it reflect any change
in the determination of his competence to practice law by any of these state bar

associations. It follows that the mere fact that appellants counsel did not maintain
an active status in his licensing states is not a per se disqualifying factor.
We also note that Rule 8-6e, Comment, Department of the Navy JAGINST 5803.1A
(Ch. 3, 30 May 1996), states that "an individual may be considered 'inactive' as to
the practice of law within a particular jurisdiction and still be considered 'in good
standing[.]'" Under this rule, therefore, inactive status does not bar military counsel
from being certified as competent under Article 27(b)(2) to practice before Navy and
Marine Corps courts-martial. We decline to adopt a more stringent rule for civilian
counsel practicing before courts-martial. Unless an accused can demonstrate that
civilian counsel had never attained any bar membership and could not be certified,
we shall not deny or limit a military accuseds right under Article 38 to elect
civilian representation and pick his own civilian counsel. Once counsel is licensed to
practice law by a state or competent licensing authority, we shall presume that
civilian counsel are competent to appear as defense counsel at courts-martial.*
We agree with the federal cases cited above that once a state licensing authority has
reviewed the qualifications and admitted an attorney to practice, a subsequent
change in bar status alone does not necessarily result in a determination that there
has been a denial of the Sixth Amendment right to counsel. We conclude that
appellants civilian counsel was not disqualified to practice before courts-martial
by virtue of the fact that he was "inactive" in the three states within which he was
licensed.
In any case, in at least one state, Texas, Mr. Cs inactive status prohibited practice
of law only within the state. Texas bar membership was adequate, therefore, to
support counsels appearance before a court-martial regardless of any limitations
imposed by Hawaii or Iowa.
Because appellant has presented no issue of competence arising from civilian
counsels bar status and because appellant has not shown that civilian counsels
performance was otherwise deficient, appellant has failed to meet his heavy burden
of showing that he was denied the effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687 (1984); United States v. Brownfield, 52 MJ 40, 42
(1999); United States v. Scott, 24 MJ 186, 188 (CMA 1987).
IV. CONCLUSION
The decision of the United States Navy-Marine Corps Court of Criminal Appeals is
affirmed.
FOOTNOTE:
*

The record before us does not indicate whether there is a generally recognized

practice in the trial of criminal cases before federal district courts that limits
representation by counsel who are not in an active status in a state or federal bar. To
the extent that there is a generally recognized practice providing for such limitations,
it may be appropriate for the President to consider whether similar limitations
should apply under the rules governing trials by courts-martial. See Art. 36, UCMJ,
10 USC 836.
COX, Senior Judge (concurring):
I agree with the resolution of the granted and specified issues. However, I am
disquieted by the idea that it is acceptable to allow counsel, military or civilian, to
practice before courts-martial when they could not represent civilians in civilian
courts. Intuitively, it is my belief that military defendants, as well as their family and
friends, operate under the assumption that "JAGS" are lawyers who are duly
authorized to practice law in one or more of the sovereign States of this country.
Furthermore, notwithstanding the cases relied upon in the majority opinion which
have let convictions stand even though the lawyer was disqualified from active
practice, I know of no federal or state judge who would willingly let a disbarred,
suspended, or inactive lawyer practice in his or her court. We should accept no less
for our military accused.
If I were writing the rules, I would require that counsel (military or civilian) be in an
"officially" recognized status which makes clear that they may be appointed to
represent parties in a criminal trial or that they may, for a fee from a client, go into a
courtroom and represent that client. That status carries with it the simple recognition
that the attorney is "legally competent" to represent clients. I would accept nothing
less in order to meet the requirements of Article 27, United States Code of Military
Justice, 10 USC 827. To permit less seems to me to demean the noble profession
of the law and to perpetrate a fraud upon the servicemembers, their families, and the
public at large.
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